Inside Higher Ed: Full court press

Sometimes, good faith just isn’t good enough.

In the latest twist of a three-year legal case involving copyright and electronic course materials, the lawyers for two prestigious university presses and an academic publisher earlier this month proposed an injunction that, if approved by a judge, would make Georgia State University comply with strict guidelines for copying and distributing copyrighted texts.

Professors and librarians, they say, cannot be counted on to follow the letter of the law — at least, not as the plaintiffs see it.

The injunction would forbid Georgia State professors from making certain amounts of copyrighted material available to students without paying licensing fees to publishers. That would include poems longer than 250 words and essays longer than 2,500 words. Professors would be allowed to scan no more than 1,000 words out of a book (or 10 per cent, whichever is less). If any professor ran foul of those rules, the university could be held liable.

The new filing is part of a lawsuit brought in 2008 by Cambridge University Press, Oxford University Press and SAGE Publications, with backing from the Association of American Publishers and the Copyright Clearance Center. At its crux was Georgia State’s handling of “e-reserves” — electronic documents containing texts that professors and librarians had scanned from copyrighted publications and made available to students, either through the library or on course websites.

The publishers had made their objections known from the beginning of the suit. But the proposed injunction, by spelling out exactly what the publishers believe they are entitled to, has drawn more attention to the case.

Requiring universities to pay for copyrighted content might not seem odd, except that professors everywhere have been excerpting generously from such works for years (and well before the articles could be posted online) under the auspices of "fair use" — an exemption to copyright law that gives educators more leeway when it comes to copying texts and making them available to students. Georgia State believes that as long as use of a copyrighted work satisfies the four factors of fair use, there is no need to seek permission from or pay the rights holder. It provides guidance to faculty on how to determine what qualifies as fair use, but does not look over professors’ shoulders.

Since filing the injunction, lawyers for the publishers have subpoenaed documents and taken depositions from a number of Georgia State professors, grilling them about their use of e-reserves.

There is no guarantee that the district judge will approve the injunction. In fact, some legal scholars say it is unlikely, given the judge’s favourable assessment of Georgia State’s copyright policy in an earlier ruling. But some in the library world are angry at what they see as an attempt to sidestep fair use in order to wring money from libraries.

“The order quite literally asks the impossible and was apparently written by people with no functional knowledge of how higher education actually works,” Kevin Smith, a scholarly communications officer at Duke University, wrote in a blog post after the injunction was filed.

“The administrative costs alone would be staggering, not to mention the permission fees,” Smith continued. “The record keeping, monitoring and reporting requirements would cost more than any institution can afford, even if they were technically possible. Also, there is really no permission market that is broad and efficient enough to meet the demand that this order would create.”

The Oxford and Cambridge presses, which ostensibly share the libraries’ mission of maximising education, should know better than to promote the harshest possible restrictions on access to published materials, says Jonathan Band, a Washington-based intellectual property lawyer who has represented libraries in the past.

“That two university presses and an academic publisher would take such an aggressive position against a university really is troubling,” Band said, “and makes you think what these presses really see as their missions: to serve the community, or to maximise profit?”

The move also highlights how much pressure university presses are under to be profitable, Band added — even those that are attached to well-heeled institutions such as Cambridge and Oxford.

The Copyright Clearance Center, which acts as a broker for copyrighted content on behalf of rights holders, would not comment on the criticisms, nor would the Association of American Publishers.

The reason librarians and lawyers outside Georgia State are taking notice is that they fear that if the plaintiffs are able to get a judge to endorse their strict interpretation of the university’s obligations, publishers would have ammunition to make similar demands of other university libraries, said Brandon Butler, director of public policy initiatives for the Association of Research Libraries (who wrote his own blog post criticising the injunction).

“Clearly the publishers mean for this order, if they won, to be the model for other institutions,” Butler said.